UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee,

v. John Bradley DAVIS, Defendant-Appellee, Cross-Appellant. No. 98-3671 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit.

Aug. 18, 1999.Appeals from the United States District Court for the Middle District of Florida.(No. 98-00146-CR-ORL18c), G. Kendall Sharp, Judge. Before TJOFLAT, BLACK and HULL, Circuit Judges. PER CURIAM: Appellee John Bradley Davis pled guilty to possession of three or more images of child pornography, in violation of 18 U.S.C. § 2252(a)(5)(B). At sentencing, the district court dete rmined Appellant's offense level to be 16 but granted a downward departure b ecause of "extraordinary circumstances" including "the absence of the victim" and "the fact that the defendant made no use of the pornographic material other than for personal use" and sentenced Appellant to two y ears probation. The Government appeals the sentence contending the district court erred in granting a downward departure from th e applicable Sentencing Guidelines range, U.S.S.G. § 5K2.0. Appellee cross-a ppeals contending the district court plainly erred in setting his offense level at 16. Based upon our review of the record, we conclude the district court improperly departed downward, and thus vacate and remand for r esentencing. Additionally, the district court should clarify the calculation of Appellee's total offense level on remand. We review the district court's decision to depart downward from the Sentencing Guidelines for abuse of discretion. United States v. Rucker, 171 F.3d 1359, 1361 (11th Cir.1999). This abuse of discretion standard "includes review to determine that the di scretion was not guided by e rroneous legal conclusions."

### 2 Id. (citation omitted). Because Appellee failed to object to his total offense level, we review this claim for plain error. United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 1776-1779, 123 L.Ed.2d 508 (1993). A sentencing court must impose a sentence within the applicable Guideline range unless it finds there exists "a mitigating circumstance of a kind, or to a de gree, not adequately taken into consideration by the Sentencing Commission in formulating the [G]uidelines that should result in a sentence different from that described." United States v. Willis, 139 F.3d 811, 812 (11th Cir.1998) (quoting U.S.S.G. § 5K2.0). To grant a departure, the court must first determine whether any factor makes a case fall outside the "heartland" of typical cases embodying the conduct described in the applicable guideline. See Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2046-2047, 135 L.Ed.2d 392 (1996). If a case is found to be atypical, the court must consider whether the factor should result in a different sentence. Id. To determine whether a factor should result in a different sentence, a district court must firs t decide whether the factor is forbidden, encouraged, discouraged, or unaddressed by the guidelines as a potential basis for departure. Id. at 2045. If a factor is forbidden, e.g., race, sex, national origin, creed, religion and socio-economic status, a district court cannot use it to depart from the applicable guideline. Id. at 2047. If a factor is encouraged, e.g., causing death, a court is authorized to depart from th e applicable guideline if the guideline does not already take that factor into account. Id. at 2045. If a factor is discouraged, e.g., education and vocational skills, or is an encouraged factor already taken into account by th e applicable guideline, a district court may depart only if the factor is present to an exceptional degree or in some other way makes the case distinguishable from an ordinary case where the factor is present. Id. at 2045. Finally, a district court may depart on the basis of a factor not addressed by the Sentencing Commission if it finds, "after considering the 'structureand theory of both relevant individual guidelines and the Guidelines taken as a whole,' " that the factor takes the case out of the appli cable Guideline's heartland. Id. at 2045 (citation omitted).1 The district court may have also relied on Appellee's lack of criminal history as a basis for departing downward because the court noted he "never had any prio r brushes with the law." Such a departure would be inappropriate because Appellee's criminal histor y category fell within Category I which adequately accounted for his lack of criminal history. See U.S.S.G. § 4A1.3 (stating that "a departure below the lower limit of guideline range for Criminal History Category I on the basis of the adequacy of criminal history cannot be appropriate."). Appell ee further contends other bases support the district court's departure. However, "in reviewing downward departures, [this C ourt only] considers the reasons for departure actually articulated by the sentencing court." United States v. Baker, 19 F.3d 605, 616 (11th Cir.1994) (quotation and citation omitted). 

### 3 The district court granted a downward departure because of "extraordinary circumstances" including "the absence of the victim" and "the fact that the de fendant made no use of the pornographic material other than for personal use." These bases for departure are not atypical and therefore the district court abused its discretion in granting the departure. The district c ourt sentenced Appellant pursuant to U.S.S.G. § 2G2.4(a) which addresses mere possession of child pornography. Cf. U.S.S.G. § 2G2.2(a) (providing for increased offense level for one engaging in tr afficking, transporting, shipping, or advertising of child pornography). We have recently explained that the harm resulti ng from possession of child pornography occurs when one sustains a market for such pictures. United States v. Miller, 146 F.3d 1281, 1285 (11th Cir.1998). Therefore, it is not necessary for one to derive any benefit from the child pornography or actively solicit the pornography, provided one's actions play a role in the distribution network. Id. Accordingly, the applicable Guideline adequately takes into account Appellant's mere possession of pornography. We therefore conclude the district court erred in departing downward on these bases and vacate and remand the case for resentencing. 1 On remand, the district court should clarify the basi s for its determination of Appellee's total offense level. The PSI calculated Appellee's total offense leve l at 18, representing the application of a three level reduction for acceptance of responsibility and three senten ce enhancements for use of a computer in obtaining child pornography, possession of materials involving minor s, and possession of ten or more items containing visual depictions involving the sexual exploitation of a minor. The district court stated at sentencing it was adopting the PSI's application of th e Guidelines, except the sentence enhancements for possession of materials

### 4 involving minors, and possession of ten or more items containing visual depictions involving the sexual exploitation of a minor. Accordingly, Appellee's total o ffense level should have been set at 14. The district court, however, sentenced Appellee based on a total offe nse level of 16. Upon remand, the district court should clarify its calculation of Appellee's total offense level. VACATED AND REMANDED.